In December, the National Labor Relations Board (NLRB) issued a number of major and consequential decisions.  Some of the more important of these decisions are summarized here:

Facebook Posts Protected in Nonunion Workplace - Hispanics United of Buffalo, 359 N.L.R.B. No. 37 (2012)

An NLRB Administrative Law Judge found that a Buffalo nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.

The case involves an employee of Hispanics United of Buffalo, which provides social services to low-income clients. After hearing a coworker criticize other employees for not doing enough to help the organization’s clients, the employee posted those allegations to her Facebook page.  The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The judge found that the employees’ Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.  The judge also found that the employees did not engage in any conduct that forfeited their protection under the Act.  The Board upheld the ALJ's decision even though no union was involved.  

Job Security Discussions Protected - Sabo, Inc. d/b/a Hoodview Vending Co., 359 NLRB No. 36 (2012)

The Board found that the employer violated the Act by discharging an employee for discussing job security with another employee because it was protected concerted activity. In the conversation at issue, the employees discussed whether an internet job posting meant that one of the employer’s employees would be discharged.  Although the conversation did not contemplate future activity, the Board found that the conversation constituted protected concerted activity because conversations about job security, like conversations about wages, are inherently concerted. The Board further stated that if the Act did not protect the ability of employees to discuss job security without fear of retaliation, employers would chill employees in their exercise of their right to act in a concerted manner.  The Board also found that the employer had not shown that it would have discharged the employee in the absence of the conversation.  

Mandatory Arbitration Program Struck Down - Supply Technologies, LLC., 359 N.L.R.B. No. 38 (2012)

The Board struck down a non-union employer’s mandatory arbitration program on the grounds that the program interfered with employees’ Section 7 rights under the National Labor Relations Act . 

The NLRB reaffirmed its view that it is illegal for an employer to require all claims to be submitted through the Alternative Dispute Resolution process because it amounts to a waiver of an employee's right to file unfair labor practice charges with the NLRB.  The Board determined that because the employer's materials did not specifically state that employees retained the right to file charges with the National Labor Relations Board, and because it did not specifically carve out NLRB charges from the list of claims excluded from the program, the program materials could cause employees to believe they did not have the right to file charges with the Board.  Therefore, the entire alternative dispute resolution program was unlawful.

Employer Cannot Unilaterally Impose Discipline When No Collective Bargaining Agreement - Alan Ritchey, Inc., 359 N.L.R.B. No. 40 (2012)

A group of current and former employees challenged the employer's disciplinary policies arguing that the employer did not apply its policies uniformly.  The Board determined that, where a collectively bargained grievance and arbitration system does not exist, as is usually the case where an employer and a union are bargaining a first contract, an employer generally may not unilaterally exercise discretion in imposing significant discipline (i.e., suspension and termination). Instead, the employer must give the union notice and an opportunity to bargain before imposing such discipline on an employee.  Employers may impose unilateral discretionary discipline in situations presenting “exigent circumstances” when an employer has a reasonable good faith belief that the employee’s presence on the job will present a serious, imminent danger to the employer’s business or personnel.